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Monday, 22 April 2013

EDITOR NOW HOURS AWAY FROM JAIL

Media
Institute of Southern Africa – Swaziland chapter.

Background
to the Bheki Makhubu case

22
April 2013

Wave of support for embattled Swazi
editor as ‘sun sets’ on media freedom

The
Media Institute of Southern Africa in Swaziland (MISA-Swaziland), a press
freedom NGO, is encouraged by the number of voices supporting embattled editor
Bheki Makhubu, who last week was told by the high court to pay E200,000
($US21,000) within three days or else go to jail for two years.

Makhubu,
editor of monthly magazine The Nation
– Swaziland’s last remaining source of independent journalism – was found
guilty by high court judge Bheki Maphalala of ‘scandalising the courts’ after
writing two articles (in November 2009 and February 2010) about the role of the
kingdom’s judiciary.

The
articles question the independence Swazi judges, criticise controversial chief
justice Michael Ramodibedi, and call on newly appointed judges to adhere to the
2005 Constitution.

If
Makhubu and his publisher, Swaziland Independent Publishers, are unable to pay
the $US21,000 fine by Tuesday 23 April, 2013, the prominent editor will spend
the next two years behind bars.

Swazi
Media Commentary, a blog based in Botswana, reports that “Makhubu has said he
will appeal the sentence, but grounds for such appeal have not been made
public, and they are not immediately obvious to media watchers of the kingdom.
Observers expect Makhubu to be imprisoned on Tuesday”.

The
Times of Swaziland Sunday, a
privately owned but censored tabloid, reports on 21 April that Makhubu has
lodged an appeal and is awaiting a reply. “I have since filed an appeal against
the judgment and I will be waiting for its outcome,” said Makhubu.

President
of Swaziland’s national association of journalists (SNAJ), Mfanukhona Nkambule,
said in the Times Sunday report that SNAJ had
launched a fund to assist Makhubu and The Nation to pay the fine. Makhubu said The
Nation, as a small magazine, does not have the money to pay the fine.

MISA-Swaziland
supports this move and calls on anyone wanting to donate to contact Nkambule on
+268 7621 6503.

Makhubu
has received support from fellow Swazis, though minimal backing has come from
the local media, which is mostly owned and controlled by the government and the
royal family. The one independent newspaper group in the kingdom, The Times of Swaziland, is heavily censored
and does not directly or consistently question or criticise the ruling elite.

Despite
this, editors at the two daily newspapers – Times
of Swaziland and Swazi Observer –
have made an effort to support Makhubu. The Times
editorial on Monday, April 22 2013 describes the sentence against Makhubu “as
an attempt [by the judiciary] to put a lid on complaints”.

Mbongeni
Mbingo, managing editor of the Swazi
Observer, which is owned by Tibiyo Take Ngwane, an investment fund
effectively owned and controlled by King Mswati III, wrote a ‘blank page’
opinion piece that seemingly criticises the decision of judge Bheki Maphalala,
and, therefore, could be interpreted as an act to stand in solidarity with The Nation magazine.

Jabulani
Matsebula, president of Swaziland’s editors’ forum (SEF), commenting on
Makhubu’s sentence, said: “It is a shock that in this day and age anyone can
actually receive a custodial sentence for criticising a public institution and
expressing himself on the conduct of a public official.”

Matsebula,
recently appointed as Swaziland’s first media ombudsman, added that it is
“particularly disturbing because The Nation
magazine is considered a credible independent voice in Swazi journalism”.

The
South African Editors Forum (Sanef) posted news of Makhubu’s story on its
website homepage (www.sanef.org.au) under the headline, “Sanef concerned with
sentencing of Swaziland Editor Bheki Makhubu”.

In
part, the Sanef statement reads: “The use of contempt charges to silence
legitimate scrutiny of judicial conduct and attitudes will do nothing to secure
the dignity and credibility of Swaziland’s courts. On the contrary, by seeking
to enforce silence rather than foster open debate, this judgment is more likely
to engender doubt, criticism, and suspicion of Swaziland’s courts than it is to
create respect.”

Sanef
also urges the South African government and the African Union to “more
vigorously remind the Swazi authorities of the importance of a free press and
open democratic environment”.

In
some of the strongest language against the ruling, the Swaziland solidarity network
(SSN), a pro-democracy movement based in South Africa, said: “In the High Court
of Public opinion where the Chief Justice Ramodibedi is viewed as the worst
Chief Justice the country has ever seen, the king’s lap dog and currently
occupies his position unconstitutionally, the entire case is a witch hunt and a
political manoeuvre on the country’s only independent magazine and the
government’s most fearless critic.”

The
SSN appear to allude to Section 157(1) of Swaziland’s Constitution, which came
into effect in on July 26 2005, says: “A person who is not a citizen of
Swaziland shall not be appointed as Justice of a superior court after seven
years from the commencement of this Constitution.”

The
Chief Justice in Swaziland is Michael Ramodibedi.

Ramodibedi,
as reported by the Mail & Guardian
[a South African newspaper] this week in its article ‘Judicial
crackdown on Swazi editor’, was recruited from Lesotho, where he continues
to sit as president of that country’s court of appeal.

Putting
aside the conflict that may arise from being chief justice in one country while
simultaneously being president of the court of appeal in another country, it is
now April 2013, more than seven years after the commencement of Swaziland’s
Constitution.

Does
this, therefore, suggest that Lesotho citizen (and non-Swazi citizen) Michael
Ramodibedi, who is current chief justice of Swaziland, is now holding his Swazi
post unconstitutionally?

According
to Section 157(1) of Swaziland’s highest law, it would seem so.

Flowing
from this, Section 64(2) of the Constitution says the king, as head of state,
“shall protect and defend this Constitution and all laws made under or
continued in force by this Constitution. Which in turn leads to Section
64(4)(d), which states that the king has the power to issue “pardons” and
“reprieves”. Therefore, if he so wishes, power lies with King Mswati III to
pardon Bheki Makhubu.

Above
all these sections, though, is Section 24(1): “A person has a right of freedom
of expression and opinion,” which includes “freedom of the press and other
media”.

If
the matter continues in the courts, which is most likely, MISA-Swaziland calls
on the judiciary to respect Section 24 of the Constitution and, on appeal – after
a transparent and proper legal process has been followed – to drop the charges
against Bheki Makhubu and The Nation.

As
bad as criticism is, criminalising words and articles in the name of respect
will do nothing to generate confidence in the Swazi judicial system. And, as
hurtful as criticism may be, criminalising inconvenient truths and silencing
dissent, in the long run, does nothing to sure up Swaziland’s place in the
modern world.

The
free exchange of ideas and words – harmful, offensive and critical words
included – are a necessary part of democracy and, moreover, are legally
protected by Swaziland’s Constitution. What’s more, legitimate debate and truth
should always be a watertight defence.

Notwithstanding
the above legal quagmire, the Mail &
Guardian in the same
article this week reported a piece of information that is rarely, if ever,
mentioned in the Swazi media.

Swaziland’s
“Attorney general Majahenkhaba Dlamini prosecuted the case [against The Nation] after being delegated to do so
by his wife Mumsy Dlamini, the director of public prosecutions”.

MISA-Swaziland
suggests that this mere fact – that a public prosecutor wife delegates a case
to an attorney general husband – raises certain conflict of interest questions.

Also
lending their support to Bheki Makhubu and The Nation is Swaziland’s centre for human rights. In a statement the
centre said they were “shocked” by the court’s ruling. “We believe the media is
very important for every state and their critical thinking is pivotal for
social development in all sectors of life. The judiciary, though independent,
is not immune from criticism. Section 24 of our Constitution provides for the
freedom of expression.”

Freedom
House, a U.S.-based human rights NGO, said the sentencing of Makhubu is a
“blatant disregard for the constitutionally protected right to freedom of
expression”. Freedom House calls on the government of Swaziland to “withdraw
all charges against Bheki Makhubu and stop its continued attack on its
citizens’ political rights and civil liberties”.

London-based
human rights NGO Amnesty International, which has helped Bheki Makhubu and The Nation in the past, said the judge’s
ruling was “proof of the southern African kingdom’s increasingly aggressive
crackdown on independent media and freedom of expression”.

The
local media in Swaziland, particularly the state owned and controlled broadcast
media, has been mostly silent in defending The Nation, and, by extension, defending their own freedom of speech.

However
Times of Swaziland’s Saturday’s
paper, Swazi News, published a
possibly risky but commendable editorial on April 20 2013 in defence of freedom
of speech. (Risky insofar as it could be interrupted as disrespectful to the judge’s
ruling against The Nation.)

“The
sun has set on media freedom in the country. For a long time the country’s
politicians have been saying media practitioners are free to write on any
issue. As a journalist I find it very scary to write this piece, I do no know
what those in charge of the administration of justice will perceive it as but
the sentence against Bheki Makhubu and The Nation is one of the harshest
sentences to be handed down by our courts…

“A
free media is the epitome of democracy and basic liberties. A country’s freedom
is measured through the way the country treats its media. An independent press
should mirror society and that helps to play the role of watchdogs where there
are no political parties. The world measures a free society through the freedom
of the press.”

The
editorial concludes by saying “an axe” is now “hovering over media freedom, we
all no longer have a say”.

The
daily newspaper Times of Swaziland on
Monday, April 22 2013, a day before the possible imprisonment of Makhubu, spoke
in strong terms condemning the actions of the judiciary.

“It
is no secret that we are in the midst of midst of a judicial crisis and have
been for over two years. The crux of the matter is simply the question of
whether or not the people of Swaziland trust their Judiciary to do right by
them…

“In
the context of the repeated failure to address the people’s concerns about
fairness and transparency in the Judiciary, the decision to fine the editor
E400,000 (or be jailed) can only be interpreted as an attempt to put a lid on
complaints; to restrict the confidence of the Swazi people to speak up when
they see a problem so that, together, we can fix it. Shooting the messenger is
the best way to ensure that problems are never reported; thus remaining
unresolved.”

(The
total fine against Makhubu and The Nation
is E400,000 ($US42,000) but half was suspended for five years providing The Nation does not step out of line – or
‘scandalise the courts’ – again.)

MISA-Swaziland
supports and echoes all the voices speaking up for Bheki Makhubu and The Nation magazine; for these voices
represent much more than support for one person and one magazine. They support
the ideal (and constitutionally protected provision) of freedom of speech: that
everyone has a right to speak his or her mind, and that Swazis should feel safe
and protected when they do so.

MISA-Swaziland
supports as many voices in the media as possible: citizen’s voices, government
voices, civil society voices, business voices, royal voices, foreign voices,
etc. – the list goes forever on.

MISA-Swaziland
supports approving voices as much as we support dissenting voices. We support
the idea that people have the right to question and the right to be questioned;
the right to criticise and the right to be criticised; and, if it happens, the
right to offend and the right to be offended.

We
support modern, realistic, proportionate and non-criminal libel and defamation
laws. We believe disclosure of information and news, in the public interest,
should always be the norm, and suppression and censorship should always be the
very rare exception.

In
a constitutional democracy, of which Swaziland purports to be, people are free
to dismiss and are free to be dismissed. People are free to ignore while others
are free to ignore you – this gets close to the essence of freedom of speech.

May
common sense and freedom of speech be defended, and may Bheki Makhubu continue
his important work.

Background on Swaziland

Swaziland,
where a quarter of the population live with HIV, is a landlocked absolute
monarchy of one million people in sub-Saharan Africa, wedged between South
Africa and Mozambique.

In
2010 Médecins Sans Frontières, an international health organisation, said life
expectancy in Swaziland – ruled by King Mswati III since 1986 – had dropped
from 60 years-of-age in the 1990s to 32 years in 2007. HIV and tuberculosis are
the main killers, said MSF.

In
2012 Forbes magazine rated Mswati the world’s 15th richest monarch with a
personal fortune of $100 million, while describing the king as one of Africa’s
“five worst leaders”. Seventy percent (70%) of Swazis live on $1 a day and 40
percent of the population are unemployed.

The
Media Institute of Southern Africa in Swaziland (MISA-Swaziland) defends and
promotes freedom of speech and assists journalists to go about their work.